GPS tracking of NYC cabbies flourishes even as they fight back

Whether New York City can constitutionally use GPS devices to monitor cab drivers' movements and fares landed before a federal appeals court Thursday.

The appeal spotlights the growing reach of tracking technology, which has been used to monitor everybody from public school students to garbage collectors, truckers, and now cab drivers.

Nobody doubts that some cabbies overcharge tourists and those unfamiliar with New York's terrain. But what is being questioned is whether the New York City Taxi and Limousine Commission can fine or fire drivers with data obtained from GPS devices that were installed without court warrants.

The specific case before the Second US Circuit Court of Appeals concerns driver Hassan El-Nahal, who was accused of overcharging passengers. He lost and regained his taxi license several times. He sued on behalf of himself and others who were fined or who lost their taxi license due to information gathered from GPS devices. The trackers were installed on licensed cabs in 2007, and among other things, they monitor trip routes, trip times, and fees. A federal judge ruled against El-Nahal, and he appealed.

In 2010, the taxi commission announced that almost 22,000 drivers "illegally overcharged at least one passenger" over a 26-month period to the tune of more than $1 million. Many drivers who knew that the technology was on their vehicles lost their licenses or paid fines.

Attorneys for El-Nahal argue that the Supreme Court ruled in 2012 that attaching GPS monitoring devices to vehicles was a search and that a probable cause warrant was generally required.

"We hold that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search,'" the high court ruled.

The case at bar is no different: The TLC mandated the physical placement of tracking devices in privately owned taxicabs and then (after promising it would not) used the devices to investigate and obtain information about drivers' movements over weeks, months and years. It matters not at all that the automobiles in this case were taxicabs, which are regulated by the city, as opposed to the jeep used by a drug dealer and belonging to his wife. Physical placement of a tracking device on a private vehicle in order to obtain information is, under Jones, a search.

In January, however, a New York federal judge ruled that the Jones case did not apply.

The data's use "in an administrative proceeding does not constitute a search within the meaning of the Fourth Amendment," US District Judge Katherine Forrest wrote. "Even assuming that the use of such data was a search, any such search was reasonable and thus did not constitute a violation of the Fourth Amendment."

Commission attorney Sherill Kurland said the ruling supports the commission's "ability to use technology to protect the riding public."

David Kravets / The senior editor for Ars Technica. Founder of TYDN fake news site. Technologist. Political scientist. Humorist. Dad of two boys. Been doing journalism for so long I remember manual typewriters with real paper.